nature of a document, and that if a document is not given or taken as a promissory note, and is not a promissory note in fact, the Stamp Act cannot apply. Here it is plain that the document in question was not given or taken as a promissory note, and was not a promissory note in fact. It has been pointed out by all the Judges who have construed the Imperial enactment couched in the same words that the full meaning cannot be given to the words of section 70 of "The Stamp Act, 1882," for most mercantile instruments contain, in some form or another, a promise to pay some sum of money, and it is impossible to suppose that every document which happens to contain a promise to pay a sum of money, though it contains none of the elements of a promissory note as generally understood, is yet to be held to be a promissory note for the purposes of this section. The intention of the Legislature in using the wide words is to prevent an evasion of the duty with respect to documents which in substance are promissory notes, and not to lay a trap for the unwary and to supply those disposed to escape by means of technicalities from their just obligations with an artificial defence, without merit, to claims founded upon instruments which neither according to the intent of the parties nor in substance are promissory notes. It is not disputed that, as the subjectmatter of the contract sued upon is under the value of £20, the document is not liable to stamp duty as an agreement, and that there is no other head under which it can be liable to duty, if not liable under section 69 or section 70. The appeal must be allowed, with £7 7s. costs. The case must be remitted to the Court below to be further dealt with, with the direction that the document in respect of which the action is brought is not a bill of exchange or promissory note within the meaning of sections 69 and 70 of "The Stamp Act, 1882," and that it is admissible in evidence without being stamped, whether as a bill of exchange, promissory note, or otherwise. Appeal allowed. Solicitor for the appellant: J P. Innes (Palmerston North). Solicitors for the respondent: Hankins & Loughnan (Palmerston North). BODLEY v. MACDONALD. S.C. HEARING. Vendor and Purchaser-Time-Whether of Essence-Private Hotel-Title- Wellington. Semble, That, on a sale of a private hotel (not licensed for the sale of intoxicating liquors), and of tea-gardens attached, as a going concern, time is of the essence of the contract just as much as on a sale of licensed premises. A contract for the sale and purchase of buildings and land, used as a private hotel and tea-gardens, provided for the payment of a deposit on the execution of the contract, that the purchase should be completed on a certain day, that the balance of the purchase-money should be paid, at the purchaser's option, either by a cash payment on the day for com pletion or by the execution of an agreement covenanting to pay the balance eighteen months thence, and that the purchaser should be entitled to possession as from the day fixed for completion. The purchaser elected to execute an agreement, as provided, in lieu of paying cash on the day for completion. Held, 1. That the vendor was bound to give the purchaser a complete title on his executing the agreement provided for. 2. That, the purchaser having waived this, the vendor was bound to show a good title, and to obtain the consent of all parties whose consent was necessary to give lawful possession, before he could call upon the purchaser to take possession and execute the agreement provided for. 3. That, the vendor having refused to do this, the purchaser was entitled to rescind the contract and claim a refund of his deposit, whether the time for completion had arrived or not, and whether or not time was of the essence of the contract. Tilley v. Thomas(1) and Boehm v. Wood (2) followed. Murphy v. Thornton(3) distinguished. Semble, That a formal abstract of title need not be furnished in New Zealand. THIS was an action for the recovery of a deposit of £500 paid by the plaintiff to the defendant under a contract between the defendant as vendor and the plaintiff as purchaser for the sale and purchase of land and buildings at the Lower 1901. May 1, 15, 16, 25. STOUT, C.J. S.C. 1901. BODLEY Hutt used as a private hotel and tea-gardens, and known as McNab's Gardens. The plaintiff claimed to have rescinded the contract on the ground of breaches by the defendant entitling MACDONALD. him to do so. The material clauses of the contract and the other facts of the case will be found fully stated in the judgment. The action was heard at Wellington by Stout, C.J., without a jury, on the 1st of May, 1901. Counsel for the plaintiff addressed the Court upon the law in opening the case, and at the conclusion of the evidence moved for judgment. The case was then adjourned for further consideration. T. W. Hislop and H. F. Johnston, for the defendant : It is not denied that it was an implied condition that there would be a good title. The only question is when and how it was to be shown. It is said that the title must be shown by abstract, and that it must be proved. [STOUT, C.J.-The rule began when there was no such thing as registration.] [After this point had been partly argued, counsel for the plaintiff stated that he had never put his case on the necessity of an abstract, but had intended to submit only that in some way such information must be given and substantiated as would enable the purchaser to ascertain whether the vendor had a title or not. It was then admitted by counsel on both sides that a formal abstract need not be furnished, but that the title must be disclosed.] Here everything was disclosed. It was incumbent on the purchaser's solicitors to express themselves in an unequivocal way and to say definitely that they wished the vendor's solicitors to produce the agreement. They had been referred to the Wellington Trust and Loan Company, where it could be seen. As to the form of notice of rescission, the plaintiff has not brought himself within the cases: Reynolds v. Nelson(1). He should have given notice to the defendant to complete at some reasonable time, and have stated in terms that on default he would repudiate: Hatten v. Russell(2). It is said that a complete title was to be given on giving possession. But the cases cited were before the enactment that the rules of equity (1) 6 Madd. 18, 26. (2) 38 Ch.D. 334, 346. S.C. 1901. BODLEY are to prevail, and in Tilley v. Thomas (1) Lord Cairns expressly said that there may be a provisional possession before title shown. Here also there are distinct provisions as to possession and title. The purchaser was bound to take the MACDONALD, vendor's agreeinent without the consent of the Wellington Trust and Loan Company being shown: Boehm v. Wood(2). It has never been held that executing an agreement to pay is equivalent to paying. Bills of exchange are not payment: Grant v. Mills(3); Dixon v. Holdroyd (4). [STOUT, C.J.-There is no doubt about that. The only question is upon the terms of this particular agreement.] It can amount to no more than a promise to pay. Clause 9 aids this interpretation. The purchaser was to be entitled to possession as from the 1st of December, but the title was to be made later. Here there was no difficulty about the possession: the defendant himself was in possession, and was entitled to give possession to his assigns. No doubt he had to get the consent of the Wellington Trust and Loan Company; but there was a provision that it should not be withheld except for good cause. The defendant had purchased from the Wellington Trust and Loan Company, and in such a case equity regards the vendor as trustee of the land for the purchaser, and the purchaser as trustee of the purchasemoney for the vendor: Sugden's Vendors and Purchasers(5). A good title is shown where it is shown that the equitable fee is in the vendor, and that the legal estate can be obtained on paying off a mortgage: Savory v. Underwood(6); Burke v. Drake(7); Avarue v. Brown(8); Esdaile v. Stephenson(9). In re Thackeray and Young's Contruct(10) shows that here the defendant had the equitable title. It is clear also that he could have made a good title, both legal and equitable, and it must be assumed that he would have done so. had, under clause 3, a month within which to put everything right. The provision as to title may be, and is here, inde (1) L.R. 3 Ch. 61, at p. 66. (2) 1 Jac. & W. 419, 422. (3) 2 V. & B. 306. (4) 3 Jur. N.S. 1147; 27 L.J. Q.B. 43. (5) 14th ed. 175. (6) 23 L.T. (O.S.) 141. (7) 2 N.Z. Jur. N.S. S.C. 102. (10) 10 Ch.D. 34, 38. He S.C. 1901. BODLEY v. MACDONALD. pendent of all other provisions; and then the vendor has up to the time mentioned to show a title, but everything else must go on in the meantime. Payment of purchase-money may be enforced (if the terms of the agreement are such) although no title has yet been shown: Murphy v. Thornton(1). The defendant was not bound to show any title until the time for a conveyance: In re Bryant and Barningham's Contract(2); Easton v. Montgomery(3). If alternative (b) under clause 3 was accepted, then completion of the purchase meant merely execution of the agreement, and no title need be then shown. This is not a case in which time is of the essence of the contract. The argument for the plaintiff overlooks the fusion of law and equity. The only cases in which time has been held to be of the essence in equity are cases of sales of stock and sales of licensed houses. Coslake v. Till(4) was a case of a licensed house and also a case of a mere tenancy at will, where it would have been absurd to suppose that time was not of the essence. The ground in the hotel cases is that there has to be a transfer of the licence, and also of the stock, furniture, and goodwill: Dart's Vendors and Purchasers(5); Day v. Luhke(6); Farnham Brewery Company (Limited) v. Hunt & Co.(7). The introduction of provisions in regard to interest, such as there are here, especially those of clause 5, has invariably been held to make time not of the essence: Patrick v. Milner(8); Williams v. Glenton (9). In none of the cases cited for the plaintiff was there such a clause as clause 5. Gordon v. Mahony(10) was similar in its circumstances to this case. Assuming that there was a refusal to show title, and such a refusal as to entitle the purchaser to rescind, still, as his solicitors went on and treated matters as still in negotiation, the vendor was entitled to readjust his position and show a |